The American
Immigration Lawyers Association (hereinafter referred to as “AILA”), founded in
1947 with its head office located in Washington, D.C., represents approximately
8,000 member attorneys and law professors who practice and teach immigration
law. AILA is a non-partisan, non-profit organization that provides its members
with continuing legal education, information, professional services, and
expertise through its 35 chapters.

The Canada chapter (hereinafter “AILA
Canada”) represents the interest of US and Canadian licensed lawyers based in
Canada who practise predominately in the area of US and US-related immigration
law. The Canada Chapter consists of approximately 120 members from coast to
coast.

AILA’S POSITION

AILA Canada is firmly
opposed to the Agreement for Cooperation in the Examination of Refugee Status
Claims from Nationals of Third Countries (the Agreement) recently signed between
Canada and the United States. AILA Canada opposes the Agreement for the
following reasons:

The Agreement does not and will not achieve the desired objective of
controlling the flow of refugees and asylum seekers from around the world;

The Agreement will result in many persons seeking entry into Canada at
Airport Ports of Entry in order to fall within the prescribed exemption
category;

The Agreement will result in persons being subject to remaining in limbo
between the two countries depending on a variety of issues that could arise
given a refugee claimant’s background;

Mere physical presence in the other country ought not to preclude the right
to seek asylum in the United States or in Canada;

There are relatively very few cases where an applicant has filed or intends
to file multiple refugee claims in more than one country.

AILA Canada views the Agreement as fundamentally flawed in that it restricts
refugee claimants in their freedom to choose the country from which to seek
refugee protection and, as such, does not adhere to the principles set out by
the UNHCR Executive Committee in Conclusion 15 (XXX). Additionally, AILA has
serious reservations that the Agreement is not consistent with basic principles
of human rights law, the Canadian Charter of Rights and Freedoms, and the
Geneva Convention of 1952. It is in this context that AILA has identified the
following issues and made the correlating drafting recommendations.

Notwithstanding the concerns raised about the Agreement, we submit the
following comments on the proposed regulations amending the Immigration and
Refugee Protection regulations.

ISSUES AND RECOMMENDATIONS

1. DEFINITION OF FAMILY
MEMBER

Issue The definition of ‘family member’ set
out in the proposed regulations does not include de facto family members.
However, the Policy Manual (OP: Overseas Processing) relating to section 25 of
Immigration and Refugee Protection Act (herein “IRPA” or “the Act”), in
relation to humanitarian and compassionate decisions, defines family members to
include de facto family members - those who are either emotionally or
financially dependent on the family. These persons could be children and they
deserve protection.

Drafting Recommendation The
regulations should be expanded to include de facto family members.
Specifically, s. 159.1 “family member” should be expanded to include the
following:

…and any person who is a de facto a member of the family of the
claimant.

2. DIFFERENCE IN INTERPRETATION OF INTERNATIONAL LAW AND OBLIGATIONS

IssueAlthough both countries are signatories to
the 1951Convention relating to the Status of Refugees and the 1967
Protocol (the Refugee Convention) and adhere to the definitions provided for
in this body of international treaty law, the subsequent jurisprudence of the
respective countries has developed independently. As a consequence, principles
of international treaty law, agreed to in both countries, are implemented in the
respective Refugee Status Determination systems subject to manifest differences
of interpretation. In the area of gender based claims this difference is
particularly acute as Canada has embraced a much wider interpretation of
gender–based eligibility than has the United States. The regulatory analysis
statement clearly acknowledges this problematic aspect of the Agreement in
stating:

The proposed Regulations, set out to implement the Agreement in safe third
countries, will likely have differential impacts by gender and with respect to
diversity considerations. Canada and the United States have different approaches
to the treatment of claims based on gender–based persecution and in relation to
those who arrive and make a refugee claim without appropriate documents. It
should be noted that the family reunification exemptions may set of these
differential impacts to some extent.

The extent to which gender impacts
will have implications for the intended outcomes of the Agreement are difficult
to determine in advance of implementation. However, data on patterns of claims
processes and procedures by gender, country of origin and grounds will be
central to monitoring the impact of the Agreement over time. Such data will
assist in the development of options to address unintended differential impacts.

Drafting Recommendation AILA Canada’s recommendation is
that this acknowledged differential impact should be addressed in the
regulations. Specifically, a person who’s claim can be anticipated, based on its
nature, to be rejected in the United States but could be accepted in Canada
should be exempt from the Agreement’s ineligibility provision. We therefore
recommend an additional subsection to section 159.6 as follows:

(d) may succeed in a claim for refugee protection under section 95(1) of the
Immigration and Refugee Protection Act, but, because of the nature of the
claim, would not likely be protected in the United
States.

3. DETENTION

Issue There are individual
claimants, subject to detention in the United States, who would not be subject
to detention in Canada. Again, the laws and practices of the respective
countries have developed independently to reflect their respective
socio-political values. It is important that Canada continue to adhere to its
own interpretation of its obligations under international law as set out in
Article 9 of the International Covenant on Civil and Political Rights and
Section 31 of the Refugee Convention. The latter provides as follows:

(1) The Contracting States shall not impose penalties, on account of their
illegal entry or presence, on refugees who, coming directly from a territory
where their life or freedom was threatened in the sense of Article 1, enter or
are present in their territory without authorization, provided they present
themselves without delay to the authorities and show good cause for their
illegal entry or presence.

(2) The Contracting States shall not apply to
the movements of such refugees restrictions other than those which are necessary
and such restrictions shall only be applied until their status in the country is
regularized or they obtain admission into another
country.

Canada should continue to adhere to its own independently evolved
jurisprudence and should refrain from permitting the Agreement to supersede its
own understanding of its obligations in international law.

Drafting Recommendation AILA Canada recommends that a
person subject to detention in the United States, but not subject to detention
in Canada, should be exempted from the Agreement’s ineligibility provision. We
therefore recommend the addition of a subsection to section 159.6 as
follows:

(e) is not subject to detention under section 55 of the Act but is subject to
detention in the United States if returned to the United
States.

4. AVAILABILITY OF AN APPEAL
MECHANISM

IssueThe regulations in their present form give
complete discretion to an Immigration Officer to make the admissibility decision
of whether a refugee claimant can enter Canada at a land port of entry. There is
no provision for this person to appear before an adjudicator in the Adjudication
Division in order to have the threshold issue of admissibility determined by an
impartial arbiter.

AILA Canada takes the position that Citizenship and
Immigration Canada (hereinafter “CIC”) must observe the principles of natural
justice and the duty of fairness enshrined in section 7 of the Charter of
Rights and Freedoms. The Immigration Policy Manuals, that provide direction
to Immigration Officers, make reference to the limited ability of Immigration
Officers to make determinations that are not considered complex. However,
factual circumstances, that may involve complex decisions, should be left for an
Adjudicator to make the ultimate decision. This is especially so as the impugned
law involves international and constitutional law.

Drafting
Recommendation It is AILA Canada’s position that deciding upon the
admissibility of a refugee claimant at a land port of entry is a complex
decision and should therefore not be left to a sole Immigration Officer whose
mandate may not necessarily be consistent with the best interests of the
applicant. As such, we recommend the addition of section 159.8 as follows:

The decision on eligibility shall be made at an admissibility hearing by
an Adjudicator.

5. FINAL
DETERMINATION

IssueWhen is the final determination made
concerning eligibility under these regulations?

Article 4(3) of the
Agreement states that an applicant is not to be returned to the receiving Party
until a final determination is made concerning the application of this
Agreement. However, at present, the regulations do not make reference to the
Stay of Execution of any Removal Order that may be made by an Immigration
Officer who decides that a person’s refugee claim is ineligible as a result of
this Agreement. As a result, an individual may be automatically removed although
no final determination has been made in light of the fact that the applicant has
a right to seek leave to appeal to the Federal Court Trial Division of either a
decision made by an Immigration Officer or, as AILA recommends, a decision made
at an admissibility hearing conducted by an Adjudicator.

Drafting
RecommendationAILA Canada takes the position that if the Agreement
is to be enforced then the regulations must be amended in order to ensure that
the applicant is not removed prior to a final determination being made
concerning the eligibility of the applicant to make a claim in Canada.
Specifically, section 231(1) in IRPA should be amended after the words “…to
reject a claim for refugee protection…” as follows:

…or with respect to a determination under subsection 101(1) (e) of the
Act…

Notwithstanding any provisions of this Agreement, either Party
may at its own discretion examine any refugee status claim made to that Party
where it determines that it is in its public interest to do so.

However,
the exercise of discretion is not outlined in the proposed regulations.

Drafting Recommendation: AILA Canada recommends that
the use of discretion should be set out in the proposed regulations.
Specifically, an additional section, section 159.10, should be inserted as
follows:

Notwithstanding any other provision in this regulation, the
Minister may decide that paragraph 101(1) (e) of the Act does not apply where
the Minister determines that it is of the public interest to do so.

In
adding this subsection the Minister will be better equipped to contend with some
of the anticipated discrepancies between our Canada’s jurisprudence and Refugee
Status Determination system and our obligations under this
Agreement.

CONCLUSION

AILA Canada opposes
implementation of the Agreement and the proposed regulations as they would serve
to alter Canada’s present Refugee Status Determination system so as to undermine
independently evolved jurisprudence, Charter principles and Canada’s
interpretation of its obligations under international law. In the event that the
Committee proceeds with implementation of the regulations, it is AILA Canada’s
position that the drafting recommendations, presented above, would serve to
mitigate the deleterious impact of the Agreement and therefore should and must
be included in the final version of the regulations.